Ram Surat Ram (Maurya),J.

Heard Sri S.C. Tripathi, for the petitioner and Standing Counsel, for the respondents.

2. The writ petition has been filed for issue of writ of prohibition, prohibiting Deputy Director of Consolidation from entertaining/deciding the restoration applications filed by respondents-2 and 3 and for mandamus directing Deputy Director of Consolidation to decide the issue relating to maintainability of restoration application and delay condonation application as preliminary issues with reasoned order before hearing/deciding restoration application on merit.

3. It has been stated that Bujharat (father of the petitioner) was allotted plot 1286 by the order of Deputy Director of Consolidation dated 31.03.1981 passed in Reference No. 853. Thereafter, the notification under Section 52 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Act') took place on 10.04.1982. The order dated 31.03.1981 was given effect to and since its allotment, the petitioner was in possession of the land in dispute. Raj Bahadur (respondent-3) filed a restoration application dated 02.12.2004 for recall of the order dated 31.03.1981. Thereafter, District Government Counsel (Revenue), Jaunpur filed a restoration application dated 10.10.2008 for recall of the order dated 31.03.1981, in the name of "Rajya Sarkar Bajariye Apper Zila Shaskiya Adhivakta Rajasva, Jaunpur". Deputy Director of Consolidation, Jaunpur is proceeding in these restoration application.

4. The petitioner filed his objection that village has already been notified under Section 52 of the Act on 10.04.1982. On the date of notification, no proceeding was pending as such restoration applications filed after such a long time, was not maintainable. The restoration applications are long barred by limitation and there is no reason to condone the delay. Restoration application filed by Rajya Sarkar Bajariye Apper Zila Shaskiya Adhivakta Rajasva, Jaunpur was not maintainable. Raj Bahadur was not affected by the impugned order as such restoration application on his behalf was not maintainable. The counsel for the petitioner submitted that the petitioner raised these points and prayed to Deputy Director of Consolidation to decide these points as preliminary points but he is adamant to decide restoration application on merit. These preliminary points goes to the root of the case and are liable to be decided before hearing the restoration application. These restoration applications have been filed by unauthorized persons after notification under Section 52 of the Act as such respondent-1 is liable to be restrained from proceeding in the matter.

5. So far as the arguments of the counsel for the petitioner for deciding the preliminary points before hearing and deciding restoration application, is concerned, U.P. Consolidation of Holdings Act, 1953 does not prescribe for deciding preliminary points before deciding the case on merits. In the absence of any specific procedure, consolidation authorities used to decide delay condonation application or any other preliminary points in the appeal, restoration application and revision under the Act, along with the appeal, restoration application and revision. Supreme Court in Ramesh Chandra Sankla v. Vikram Cement, (2008) 14 SCC 58, held that the Law Commission also considered the question and did not favour the tendency of deciding some issues as preliminary issues. Dealing with Rule 2 of Order 14 (before the amendment), the Commission stated:

"This Rule has led to one difficulty. Where a case can be disposed of on a preliminary point (issue) of law, often the courts do not inquire into the merits, with the result that when, on an appeal against the finding on the preliminary issue, the decision of the court on that issue is reversed, the case has to be remanded to the court of first instance for trial on the other issues. This causes delay. It is considered that this delay should be eliminated, by providing that a court

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